4th Circuit “likes” former employees’ free speech claims

Plaintiffs, former employees of the Hampton, Virginia sheriff’s office, were terminated after they “liked” the campaign Facebook page of a candidate who ran against the incumbent sheriff. The plaintiffs brought suit in 2009 after the incumbent was reelected, claiming that their First Amendment rights to freedom of association and freedom of speech were violated when they were not reappointed to their positions as sheriff’s deputies due to their alleged lack of political allegiance to the incumbent, and their speaking out in support of his challenger. The 4th Circuit held that the three deputies, who served as prison guards, established a genuine issue of material fact regarding whether their First Amendment rights had been violated and, as to those three plaintiffs, reversed summary judgment in favor of the sheriff.

Free association claims

Ordinarily, public employers cannot discharge employees for refusing to support a particular political position or candidate. However, the Supreme Court has recognized a narrow exception allowing dismissal of individuals in policymaking roles, under the theory that such dismissals may be necessary to implement the election decisions made by voters. The primary inquiry when applying this exception “is whether the hiring authority can demonstrate that party affiliation [or political allegiance] is an appropriate requirement for the effective performance of the public office involved.” In a previous decision, the 4th Circuit had set out a two-step analysis to determine whether a particular position falls within the exception. First, the position must “involve government decision making on issues where there is room for political disagreement on goals or their implementation.” Second, the responsibilities of the role must resemble those of “an office holder whose function is such that party affiliation [or political allegiance] is an equally appropriate requirement.” If a public employee does not meet those requirements, he cannot be discharged for exercising his First Amendment rights. To recover for retaliation, the discharged employee must show that exercise of those rights was a substantial or motivating factor in the decision terminate his or her employment.

The Court acknowledged that some law enforcement positions might satisfy the exception if allegiance to the sitting sheriff were required for law-enforcement officers to carry out their duties. However, the Court found that the three deputies who served as prison guards could not be terminated on political grounds because their oath of office simply bound them to faithfully discharge their prison-related responsibilities. It was not a law enforcement oath, and although the deputies were statutorily permitted to make arrests, they were not actually responsible for law-enforcement activities. Therefore, the Court concluded that any law-enforcement duties that the three deputies may have had was so insignificant that allegiance to the sitting sheriff was not required for them to perform their jobs effectively.

The Court then determined that a reasonable jury could find that the actions of two of the deputies, who “liked” the Facebook page of the candidate challenging the incumbent sheriff, were the substantial causes of their not being reappointed. Additionally, the third successful plaintiff, who had affixed a bumper sticker in support of the challenger to his car and had mentioned to a poll worker that she should discard the campaign materials of the incumbent, had shown sufficient evidence that his political allegiance was the reason for his non-appointment to survive a motion for summary judgment.

Free speech claims

The 4th Circuit also found that the first two deputies, in “liking” the challenger’s Facebook page, were engaging in constitutionally protected speech, and had created a genuine issue of material fact as to whether that speech was a substantial factor in the sheriff’s decision not to reappoint them. In reversing the district court order granting summary judgment to the defense, the 4th Circuit held that a Facebook “like” qualifies as “pure speech,” constitutes a “substantive statement,” and “is the Internet equivalent of displaying a political sign in one’s front yard[.]” The Court considered the Facebook activity to be speech of a private citizen about a matter of public concern, reaffirming that “an employee can speak as a private citizen in his workplace, even if the content of the speech is related to the speaker’s job.” Finally, the 4th Circuit agreed with plaintiffs that their interest in voicing support for their preferred candidate outweighed the government’s purported interest in maintaining order in the workplace.

Similarly, the third deputy prevailed on his free speech claim relating to his bumper sticker and comments to the poll worker that supported the sheriff’s challenger. Although it remained an open question whether sheriff’s office supervisors had seen his bumper sticker, the incumbent sheriff admitted that he had fired the deputy for the polling place comment (although he maintained that it was because the deputy had used profanity). Regardless, the 4th Circuit determined that a reasonable jury, if it credited the deputy’s version of events, could find that his constitutionally protected political speech was a motivating factor in his termination.